Desirable Legislation for Cemeteries

Date Published:

August, 1925

Original Author:

S. W. Rubee

Original Publication:

AACS Proceedings of the 39th Annual Convention

It would be presumptuous on my part to prepare a code of rules that might and should govern legislative bodies of forty-eight states in their deliberations in formulating and enacting new cemetery laws that would meet the needs and requirements of cemeteries in every city, town or village; or submit to this body a plan that would be a sure cure for all the ills and errors of rules and regulations adopted by cemetery organizations operating under the laws of their respective states. That is not the purpose of this paper, if it were, I would be forced to go back to the early history of this nation and dig deep to analyze the sentiments of our forefathers, as expressed in laws enacted by them, that in their time were adequate and would meet every exigency and which in a measure are the basis of all laws under which we now operate or to analyze, step by step, the multiplicity of rules, good or bad, adopted by boards of every cemetery organization, that in their opinion might produce tangible results for betterment in their respective communities, that I assure you would be an endless task. And yet to prepare and submit ideas that would be desirable, in the form of new legislation that would meet our present and future needs, keeping pace with progressive ideas of the times, eliminating or amending laws now on our statute books and scrapping time worn rules, one would need in a measure to familiarize himself with present laws that have merit and those that would seem objectionable and should pass into oblivion. The opportunity is ours to familiarize ourselves as cemetery executives on cemetery laws of all the states and important decisions. There is a volume entitled "American Cemetery Law" compiled by A. L. H. Street of the Minnesota bar and published by Park and Cemetery, and' which is now in the hands of many cemetery superintendents. I would recommend that this volume have a prominent place on the desk of every cemetery executive. His library would not be complete without one. Understand there is no personal interest on my part with Allied Arts Publishing Company in recommending this book, but only to attest to its merits as a volume of useful and instructive information.

Now as to cemetery legislation that would be desirable that seems to have escaped a large contingent of lawmakers, or may I say that perhaps their attention has not been called to the many problems that confront nearly every cemetery organization, be they large or small, wherever located or however organized. First, may I call the attention of this body to the limited powers given cemetery organizations in many of our states relative to the care and perpetual maintenance of lots purchased at a time before perpetual care had its birth, or at a later period when it was optional with the purchaser when purchasing a lot to properly endow same, is one of the problems we must solve thru legislation, as the powers given organizations up to the present time, making perpetual care obligatory, are meager and quite limited. I may say that now it is a universal rule that the sale price of lot covers perpetual care, thereby eliminating the lot owners' voice in the matter of care for all time. I believe that I am expressing the sentiments of the members of this organization and the more progressive thinking people when I state that legislation in every state would be desirable to overcome and rectify the earlier mistaken idea that the human race might be depended on out of respect, sentiment or whatever term you may use, to contribute freely to the expense of caring for their place of sepulcher, without making it obligatory. In the states of Wisconsin, Minnesota, Michigan and perhaps a few others, laws have been enacted that would in a measure cover the subject, but in order to place such a law on the statute books of every state, cooperation and a concerted plan of action must evolve from this organization.

We have in the last two years in the State of Iowa submitted bills that I believe would cover every angle of this subject, but so far have not succeeded in lining up a majority of our legislators to make it a law on our statute books. Perhaps the average legislator believes himself a burden bearer, carrying the load of expectations and disappointments of his constituency and political advisers and therefore, looks with fear and restraint on everything that might usurp the freedom or rights of those whom they represent, regardless of the merits involved. My own conclusions are that it is a matter of education. We must appeal to the nobler and finer instincts of man, lead him on in thought to higher ideals, that he may grasp the true meaning of what a modern cemetery should be in God's beautiful out-of-door. I would like at this time to present the language of the bill submitted', but time and space will not permit. A copy of it can appear in Park and Cemetery if this body is sufficiently interested. One section of the bill submitted in the Iowa 1924-1925 legislature relative to the estate of a deceased person, became a law. I will ask your indulgence for a moment while I read it. I believe it is one step in advance for betterment. "Section I, The court in which the estate of any deceased person is administered before final distribution, may allow and set apart from such estate a sum sufficient to provide an income adequate to perpetually pay for the care and upkeep of the cemetery lot upon which the body of the deceased is buried, except where perpetual care has otherwise been provided for."

There is another law on the statute books in many states where cemetery organizations in cities and towns are incorporated under the mutual plan, which do not enjoy the same privileges as do cemeteries where administration is by city council, commissioners or city manager, that should be amended. Under city government, land within the city limits may, under condemnation proceedings be acquired for cemetery purposes, if in the judgment of the mayor and those in authority deem an enlargement of burial grounds necessary and is not a menace to the city's welfare. In my opinion, organizations operating under the mutual plan should' enjoy the same right as do cities and towns in condemning land for cemetery purposes, if approved by the city or town administration in which they are located, as their object is the same and would eliminate the holdup plan in common practice by adjoining land owners, where either a prohibitive price is demanded or the owner does not care to sell, thereby putting a quietus on expansion. I may say that such knowledge came to me from personal experience in several cities where I was called to make a resurvey of old cemeteries, with a view of their enlargement.

Now as to laws in general relative to regulations for cemeteries in the different states, I assume there is little difference in their meaning, only in the language used. Let me quote some of the powers given cemetery boards, directors or trustees. In the state of Iowa, for example, "they shall have power subject to the by-laws and regulations of said cemetery to construct avenues in the same, to erect proper buildings for the use of said cemetery, to prescribe rules for the improving or adorning the lots therein or for the erection of monuments or other memorials of the dead upon such lots and to prohibit any use, division, improvement or adornment of a lot which they may deem improper." From the foregoing it would seem that where power of such moment were given by a state to cemetery boards, no occasion could arise that would or could force the board of a cemetery organization into the courts to defend the rules of government adopted and yet a case was tried in the Iowa Supreme Court in which the Court declared invalid all cemetery regulations in the state which purported to deprive lot owners of the right to select those who shall do work on their lots and which purport to give the association the exclusive right to construct monument foundations. I refer to the case of the Chariton Cemetery Company vs. Chariton Granite Works. A lengthy article by A. L. H. Street covering the case appears in the June 1924 Park and Cemetery, and I assume was of interest to every cemetery executive who read it. In my opinion, when a state thru its legislature authorizes a body of men acting in the capacity of a cemetery board, giving them the right to prescribe and adopt rules that shall govern a cemetery and if the rules and regulations adopted' are in keeping with modern thought and progress for betterment, eliminating some of the time worn sentiments, the courts should sustain every cemetery board in their efforts. If, however, the court found that a cemetery organization, thru its management, did not measure up to the rules adopted and did not comply with the standard of workmanship that they, by the power given them, had dictated in the building of foundations for memorials, or otherwise, as stated in this case, then the court, in my opinion, should severely censure such an organization or its board of managers and them alone and not blast the hope and efforts of other cemetery organizations who are striving for higher ideals and better workmanship in modernizing cemeteries, by adverse court decisions.

In this period of intensive progression in which we live, there is a degree of selfish interest that is the prime motive in any commercial, political or social undertaking and I believe this selfish interest is now manifest to a marked degree in the realm of cemetery promotion, by promoters who organize associations, corporations, stock companies or with whatever term you may wish to brand them. Their goal is wealth for themselves regardless of cemetery ethics or the burden they may inflict on a community in which they operate or exploit. Legislation to eliminate such abuse would be quite desirable. I believe it would be proper and just if the subject could be discussed from the floor of this convention by members of the larger cemeteries where the evil is more apparent, before concerted action by members of this organization, thru its legislative committee, is taken.

There is one other point that may be of interest to members of this organization and to those who are not affiliated, that does not come under the head of legislation, but under the constitution, rules and regulations of an organization. I refer to the language used in deeds that are in common use. I assume that every cemetery organization issues deeds, warrantee deeds or a contract of sale to a lot purchaser. When a warrantee deed is given the usual habendum clause appears:
"To have and to hold, the herein above granted premises as a place of interment to the said grantee, his heirs and assigns forever."

In my opinion the word "assigns" should never appear in a cemetery document of this kind, unless the assignment is to the organization from whom the lot was purchased, for if given to the purchaser, he has the right to sell and convey his title to any person who may wish to purchase from him, regardless of all the rules and regulations an organization might adopt to debar him from doing so. It would seem to me an exhibit of poor judgment to give a person the right to assign and then adopt rules prohibiting the transfer. I speak on this point for the reason that a number of communications have reached me from organizations issuing such deed's, asking if the right of sale can be withheld when the word "assigns" appears in the deed given. My answer to them is invariably to the contrary.

I trust that if the points covered and brought to your attention in a spirit of helpfulness are the means of bringing about a better understanding of what form "Desirable Legislation" might take, that would be for betterment, and I shall feel repaid for my efforts.

From the publication:
AACS - Proceedings of the 39th Annual Convention
Chicago, Illinois
August 24, 25, 26 and 27, 1925